Jan. 27, 2005

Law professor proposes term limits for Supreme Court justices

It's a constitutional given that the nine justices of the nation's highest court are appointed for life. But a Cornell law professor is asking: Should they be?

The image of frail, cancer-ridden U.S. Chief Justice William Rehnquist administering the oath of office to President Bush last week is one of many reasons people are starting to talk seriously about term limits for Supreme Court justices, says Roger Cramton, professor of law emeritus and former dean at Cornell Law School.

The idea has picked up speed recently, due in part to a nonpartisan proposal Cramton co-authored with Paul Carrington, a colleague at Duke University, that was written about in The New York Times, USA Today and The National Law Journal this January. Their proposal, the Supreme Court Renewal Act, has gathered more than three dozen signatures among legal scholars around the country from both sides of the political spectrum. It will be published later this year in Duke's law journal and presented at a special program at the American Political Science Association annual meeting this fall.

Under the proposal, Supreme Court justices would retain lifetime appointments -- just not to the high court. Every president would get to appoint a Supreme Court justice every two years, in sync with the legislature's election cycle, without waiting for a vacancy. Justices would rotate off the court after 18 years. But instead of retiring, they would have the option to serve as senior justices on the circuit and appeals courts, similar to the circuit-riding judges of the nation's earliest days, or devote themselves to reviewing and updating the procedural rules of federal courts.

The most novel aspect of the proposal: enacting it would only entail having Congress rewrite what constitutes the "office" of Supreme Court justice -- rather than a much harder to achieve constitutional amendment.

Term limits for Supreme Court justices are necessary, say the authors, because justices on the court are living, serving and exercising their powers as justices longer. The facts: from 1789 to 1970 the average justice served for close to 16 years and retired at about age 68. Since 1970, the average tenure has risen to 25.5 years and the average age on leaving office has risen to about 79. In addition, vacancies on the court are becoming much less frequent, with no one stepping down in more than 10 years -- the longest period with no vacancy in the court's history.

Developments that Cramton and Carrington see as harmful: Appointments to the high court have become much more political, and hotly contested, with often unbalanced results such as one president getting to appoint as many as three justices while another appoints none, and with justices timing their retirements based on who is president. Furthermore, presidents from both parties have an incentive to appoint very young justices, to ensure that their parties' views are reflected in court rulings for years to come. That practice may mean that appointees are untested and inexperienced, said Cramton.

On the other end, long-serving justices are more likely, as they age, to be out of touch with the popular will -- and in some instances less willing or able to work so hard, said Cramton, who at 75 seems to have lost none of his own drive. While he noted that a critic of his proposal has called the presence of older justices "a steadying force" ensuring judicial independence from the trends of the day, Cramton countered, "I don't think 18 years of service [for high court justices] threatens judicial independence."

He complains loudest that the office of Supreme Court justice itself has achieved a kind of rarified status, with justices behaving like "celebrities because of the power they have." This has led to their deciding to rule only on the highest-profile cases -- about 80 a year, down from 350 in earlier days. Since they represent the last court of appeal, declining to rule on many cases has created uncertainty about federal law stemming from inconsistent interpretations among the lower courts in different circuits, Cramton said.

In addition, some of the controversial rulings that the high court does hand down are viewed by Cramton and others as "adventurous, deciding novel issues without basis in the constitution, history or authority. Liberals object to Gore v. Bush and a line of federalism decisions, while conservatives are offended by extending the equal protection clause to apply to homosexual issues," Cramton said. "These stir people up because they have no practicable political remedy to challenge such decisions."

Cramton, who has been associated with the Law School for 31 years, was assisted in his proposal by Cornell Law School professors Kevin Clermont and Michael Heise and professors of government Theodore Lowi and Jeremy Rabkin. "The Cramton-Carrington program evens out the opportunities for each administration and comes so close to neutral that I for one cannot find bias," said Lowi.

The proposal, one of several being put forth in academic circles today, is considered moderate. Could such a proposal be adopted, given the likely opposition of the current Bush administration? Probably not any time soon, says Cramton, but getting the idea out for general discussion is a good first step. He recalled attending a debate in the late 1950s at the University of Chicago between economists Milton Friedman and John Kenneth Galbraith arguing the feasibility of a volunteer army. "Galbraith called it an impractical proposal unworthy of discussion, but not too many years later the volunteer army was in place," observed Cramton.